Complaints against the FSA

Part

COAF Complaints against the FSA

Chapter

Complaints against the FSA

Printed on: 07/11/2024

Rulebook at: 06/08/2007

COAF 1

Complaints against the FSA

COAF 1.1

Introduction

01/12/2004

COAF 1.1.1

(1) Paragraph 7 of Schedule 1 to the Act requires the FSA to maintain a complaints scheme for the investigation of complaints arising in connection with the exercise of, or failure to exercise, any of its functions under the Act (other than its legislative functions).

(2) The FSA is required to appoint an independent person as Complaints Commissioner to be responsible for the conduct of investigations in accordance with the complaints scheme.

03/09/2001

COAF 1.1.2

The complaints scheme provides that there may be two distinct stages for each complaint. In the first stage, the FSA itself will investigate any complaint that meets the requirements of the complaints scheme (see COAF 1.4 (Coverage and scope of the scheme)) and take whatever action to resolve the matter it thinks appropriate. A complaint will normally only proceed to the second stage if the complainant is dissatisfied with the FSA's determination of his complaint or how it has been handled. This second stage consists of investigation of the complaint by the Complaints Commissioner, followed, wherever he finds for the complainant, by his recommendation to the FSA on the form of redress, if any, that is appropriate in the circumstances.

01/10/2004

COAF 1.1.3

(1) The complaints scheme is made by the FSA in accordance with its obligations under paragraphs 7 and 8 of Schedule 1 to the Act.

(2) Where the Act requires the FSA to make a particular arrangement as part of the complaints scheme, this is recognised in the following text by the use of the word "must". In contrast, where a provision in the complaints scheme states that someone "will" do something, this denotes that the FSA is committing itself or the Complaints Commissioner to some action which, though not specifically required by the Act, is nevertheless viewed as necessary to give effect to the intentions of the Act.

(3) Each provision in the complaints scheme is, consistent with the style and format of the Handbook, identified by the letter "G". It nevertheless constitutes a definitive statement of the complaints scheme which the FSA is required to maintain.

01/10/2004

COAF 1.1.4

The complaints scheme has effect from 3 September 2001.

03/09/2001

COAF 1.1.5

In this complaints scheme, "complaint" means any expression of dissatisfaction about the manner in which the FSA has carried out, or failed to carry out, its functions under the Act other than its legislative functions.

01/10/2004

COAF 1.1.6

The transitional provisions in GEN do not apply to the complaints scheme.

03/09/2001

COAF 1.1.7

Further details of the practical operation of the complaints scheme are available from the office of the FSA's Company Secretary, who may be contacted at 25 The North Colonnade, Canary Wharf, London E14 5HS, Tel No. 020 7066 9870 or by e-mail at complaints@fsa.gov.uk.

03/09/2001

COAF 1.2

Application

01/12/2004

COAF 1.2.1

Anyone directly affected by the way in which the FSA has carried out its functions, or anyone acting directly on such a person's behalf, may bring a complaint under the complaints scheme, provided the complaint meets the requirements of the complaints scheme (see COAF 1.4 (Coverage and scope of the scheme)). This includes firms and issuers of listed securities and any customer or prospective customer, whether an individual or a body corporate, or market counterparty . Groups, such as trade associations, may bring a complaint under the complaints scheme where they themselves have been directly affected by the FSA's actions or inactions. Groups may also bring complaints on behalf of one or more named members that have been directly affected by the FSA's actions or inactions, but cannot bring complaints on behalf of their members generally if it is not apparent that all of the group's members have been directly affected.

01/10/2004

COAF 1.2.2

The complaints scheme applies in relation to complaints made about the way in which the FSA has carried out, or failed to carry out, its functions under the Act. The FSA is also applying the main elements of the complaints scheme in respect of complaints against the FSA arising in connection with the exercise of its functions under previous legislation and in respect of complaints made against PIA, IMRO and SFA. Those arrangements are set out in the transitional complaints scheme.

01/10/2004

COAF 1.3

The Complaints Commissioner

01/12/2004

COAF 1.3.1

(1) The FSA must appoint an individual, subject to the approval of the Treasury, as Complaints Commissioner to carry out the functions conferred on him by the complaints scheme.

(2) In appointing the Complaints Commissioner, the FSA is advised by an appointment panel comprising the Deputy Chairman of the FSA, the Chairmen of the Practitioner and Consumer Panels established under sections 9 and 10 of the Act and another person who is independent of the FSA.

01/10/2004

COAF 1.3.2

(1) The Complaints Commissioner is appointed for a period of three years and may be dismissed from office only for reason of becoming:

(a) incapacitated by physical or mental illness; or

(b) otherwise unfit to discharge the functions of his office;

and subject in either event to the approval of the Treasury.

(2) [deleted]

(3) The Complaints Commissioner must not be an employee of the FSA and is required to act independently of, and without favouring, the FSA.

06/10/2006

COAF 1.3.3

The FSA will provide the Complaints Commissioner with sufficient financial and other resources to allow him to fulfil his role under the complaints scheme properly.

01/10/2004

COAF 1.3.4

(1) In circumstances where the Complaints Commissioner is unable to investigate a complaint, the FSA will, subject to the approval of the Treasury, appoint an individual to carry out the functions conferred on the Complaints Commissioner by the complaints scheme. For example, the Complaints Commissioner may be incapacitated by a sudden, but temporary illness or his investigation of a complaint may give rise to a conflict of interests.

(2) In appointing the individual, the FSA will ask the President of the Law Society to nominate a solicitor.

(3) The complaints scheme will apply in full to an investigator appointed under COAF 1.3.4 G (1) and the Complaints Commissioner will have no interest in investigating that complaint.

01/11/2005

COAF 1.4

Coverage and scope of the scheme

01/12/2004

COAF 1.4.1

(1) The complaints scheme provides a procedure for enquiring into and, if necessary, addressing allegations of misconduct by the FSA arising from the way in which it has carried out or failed to carry out its functions. The complaints scheme covers complaints about the way in which the FSA has acted or omitted to act, including complaints alleging:

(a) mistakes and lack of care;

(b) unreasonable delay;

(d) bias; and

(e) lack of integrity.

(2) [deleted]

(3) To be eligible to make a complaint under the complaints scheme, a person (see COAF 1.2.1 G) must be seeking a remedy (which for this purpose may include an apology, see COAF 1.5.5 G) in respect of some inconvenience, distress or loss which the person has suffered as a result of being directly affected by the FSA's actions or inaction.

01/10/2004

Exclusions from the scheme

COAF 1.4.2

Each of the following is excluded from the complaints scheme:

(1) complaints about the FSA's relationship with its employees;

(2) complaints connected with contractual or commercial disputes involving the FSA and not connected to its functions under the Act;

(3) complaints in relation to the performance of the FSA's legislative functions under the Act (including making rules and issuing codes and general guidance); and

(4) complaints about the actions, or inactions, of the Financial Ombudsman Service or the Financial Services Compensation Scheme.

01/10/2004

Circumstances under which the FSA will not investigate

COAF 1.4.2A

The FSA will not investigate a complaint under the complaints scheme which it reasonably considers amounts to no more than dissatisfaction with the FSA's general policies or with the exercise of, or failure to exercise, a discretion where no unreasonable, unprofessional or other misconduct is alleged.

01/10/2004

Complaints that are more appropriately dealt with in another way

COAF 1.4.3

The FSA will not investigate a complaint under the complaints scheme which it reasonably considers could have been, or would be, more appropriately dealt with in another way (for example by referring the matter to the Tribunal or by the institution of other legal proceedings).

01/10/2004

Investigations that may be deferred

COAF 1.4.4

A complaint which is connected with, or which arises from, any form of continuing action by the FSA will not normally be investigated by either the FSA or the Complaints Commissioner until the complainant has exhausted the procedures and remedies under the Act which are relevant to that action. An investigation may be commenced before the completion of those procedures if, in the exceptional circumstances of the case, it would not be reasonable to expect the complainant to await the conclusion of the FSA's action.

01/10/2004

Time limits

COAF 1.4.6

Complaints should be made within 12 months of the date on which the complainant first became aware of the circumstances giving rise to the complaint. Complaints made later than this will be investigated under the complaints scheme only if the complainant can show reasonable grounds for the delay.

03/09/2001

Cost

COAF 1.4.7

The FSA will not make any charge to complainants for the operation ofthe complaints scheme.

06/10/2006

COAF 1.5

Procedure

01/12/2004

Telling complainants how the Complaints Scheme works

COAF 1.5.1

The FSA will, in response to each complaint made in a durable medium, send to the complainant a leaflet, in a durable medium, explaining how the complaints scheme works, including details of his right to refer the complaint to the Complaints Commissioner if he is dissatisfied with the way in which the FSA has dealt with it (see COAF 1.5.6 G).

03/09/2001

The FSA's initial analysis of complaints

COAF 1.5.1A

On receiving a complaint, the FSA will determine whether it can be dealt with under the complaints scheme and whether it can be dealt with under the 'fast track' complaints handling procedure (see COAF 1.5.1D G).

01/10/2004

COAF 1.5.1B

Where the FSA does not investigate a complaint under the complaints scheme, either because the FSA considers it to be outside of the scope of the complaints scheme or for another reason described in COAF (see COAF 1.2 (Application) and COAF 1.4 (Coverage and scope of the scheme)), the FSA will write to the complainant explaining why this is the case and informing him of his right to ask the Complaints Commissioner to review the decision. The FSA will do this within four weeks of receiving the complaint or, where COAF 1.5.1G G (1) applies, within four weeks of the complainant notifying the FSA that he is dissatisfied with the way his complaint has been handled.

01/10/2004

Asking for information in writing

COAF 1.5.1C

(1) A complaint made orally by a consumer will be investigated by the FSA. However, if the FSA requires clarification from the complainant as to the nature or scope of the complaint, the FSA may either invite the complainant to confirm or clarify the details of the complaint, or it may communicate its understanding of the nature or scope of the complaint to the consumer, in a durable medium.

(2) Other persons complaining orally will be asked to confirm their complaint in a durable medium.

(3) The FSA may ask the complainant to explain what remedy he is seeking or to provide any factual information that supports his complaint in a durable medium.

(4) The FSA may not be able to progress its investigation of a complaint until it has received the information described in (1) to (3), as it needs to understand from the complainant what the complaint is about if it is to investigate it properly.

01/10/2004

'Fast track' complaints handling procedure

COAF 1.5.1D

(1) The FSA will use a 'fast track' procedure for investigating a complaint where it believes the complaint:

(a) is of low impact from the perspective of both the complainant and the FSA (for example, it is about a minor administrative mistake); and

(b) can be dealt with within five business days of the FSA first receiving communication of the complaint, in a way that the FSA believes remedies any adverse effect on the complainant.

(2) If, after initiating the 'fast track' complaints handling procedure for a particular complaint, the FSA then considers that the complaint does not meet the criteria in (1), it will then deal with it as described at COAF 1.5.1H G.

01/10/2004

COAF 1.5.1E

The 'fast track' procedure will involve the complaint being dealt with under the complaints scheme by the area of the FSA most closely concerned with the matter complained of.

01/10/2004

COAF 1.5.1F

For all complaints dealt with under the 'fast track' procedure, the FSA will advise the complainant of his right to refer his complaint to the FSA'sCompany Secretariatif he believes the complaint has not been resolved or is otherwise dissatisfied with the way it has been dealt with.

01/10/2004

Handling of 'fast track' complaints referred to the Company Secretariat

COAF 1.5.1G

(1) If the complainant refers his complaint to the FSA'sCompany Secretariat, the FSA will acknowledge this complaint within five business days of receiving this referral.

(2) The FSA will review the complaint, at this point, to make sure that it falls within the scope of the complaints scheme. If the FSA considers that the complaint is outside the complaints scheme, it will follow the procedures in COAF 1.5.1B G. Otherwise, it will handle the complaint in accordance with COAF 1.5.2 G.

01/10/2004

'Non-fast track' complaints: the FSA's initial response

COAF 1.5.1H

Where a complaint is not suitable for the 'fast track' complaints handling procedure, the FSA will acknowledge it within five business days of receipt and will deal with it in accordance with COAF 1.5.2 G.

01/10/2004

Stage 1: Investigation of complaints by the FSA

COAF 1.5.2

The FSA will arrange for an initial investigation by its own staff of any complaint which is a complaint under the terms of the complaints scheme and which does not come within the provisions of COAF 1.4.1 G to COAF 1.4.6 G. That investigation will be carried out by a suitably senior member of staff who has not previously been involved in the matter complained of, with a view to resolving the matter to the complainant's satisfaction.

01/10/2004

COAF 1.5.2A

In carrying out the investigation, the suitably senior member of staff will undertake a paper-based review of the complaint, by considering any documents supplied initially by the complainant, and any relevant FSA documents, or following communications from the FSA under COAF 1.5.1C G. The investigation will not involve an interview of the complainant.

06/10/2006

COAF 1.5.3

The FSA will seek to resolve the complaint as quickly as possible. The FSA will either complete the investigation of a complaint within four weeks, or it will write to the complainant within this time setting out a reasonable timescale within which it plans to deal with the complaint. If the FSA has not already confirmed whether or not the complaint will be admitted to the complaints scheme, the FSA will include this information.

01/10/2004

What are the possible outcomes for the complainant?

COAF 1.5.4

If the FSA concludes that a complaint is well founded, it will tell the complainant what it proposes to do to remedy the matters complained of.

01/10/2004

COAF 1.5.5

Remedying a well founded complaint may include offering the complainant an apology, taking steps to rectify an error or, if appropriate, the offer of a compensatory payment on an ex-gratia basis. If the FSA decides not to uphold a complaint, it will give its reasons for doing so to the complainant, and will inform the complainant of his right to ask the Complaints Commissioner to review the FSA's decision.

01/10/2004

COAF 1.5.6

Complainants who are dissatisfied with the outcome of an investigation, or who are dissatisfied with the FSA's progress in investigating a complaint, may refer the matter to the Complaints Commissioner, who will consider whether or not to carry out his own investigation.

01/10/2004

Time limit for the referral of a matter to the Complaints Commissioner

COAF 1.5.6A

(1) When the FSA writes to a complainant with its final report of its investigation, or explaining that it will not investigate a complaint under the complaints scheme under COAF 1.5.1B G, the FSA will inform the complainant that, if he is dissatisfied, he must refer the FSA's decision to the Complaints Commissioner within three months of the date of that letter.

(2) If the Complaints Commissioner receives a referral of a matter outside the three months time limit, it will be for the Complaints Commissioner to decide whether there is a good reason why the matter should be considered out of time.

06/10/2006

When will the Complaints Commissioner investigate a complaint that the FSA has not investigated?

COAF 1.5.7

When the FSA has told a complainant in writing that it will not investigate his complaint, as provided for by COAF 1.5.1A G, it will also notify the Complaints Commissioner of this fact. The Complaints Commissioner will not review the FSA's decision unless the complainant requests this. Where the complainant does request this, the Complaints Commissioner will, after considering any representations from the complainant and the FSA, then decide whether the complaint falls within the scope of the complaints scheme and, if so, whether to conduct an investigation.

01/10/2004

COAF 1.5.8

(1) If a complaint is referred or notified to the Complaints Commissioner before the FSA has had the opportunity to conduct or complete an investigation, the Complaints Commissioner will consider whether it would be desirable to allow the FSA that opportunity before conducting his own investigation.

(2) Paragraph (1) also applies to a complaint received by the Complaints Commissioner when he is conducting a Stage 2 investigation into another complaint from the same complainant.

01/10/2004

COAF 1.5.9

The Complaints Commissioner will not investigate any complaint which is outside the scope of the complaints scheme, but the final decision on whether a particular case is so excluded rests with the Complaints Commissioner.

01/10/2004

Stage 2: Conduct of investigations by the Complaints Commissioner

COAF 1.5.10

The Complaints Commissioner may conduct an investigation in whatever manner he thinks appropriate including obtaining, at the FSA's expense, such external resources as may be reasonable. In considering what is appropriate, the Complaints Commissioner will take into account the need to ensure that complaints are dealt with fairly, quickly and cost effectively.

01/10/2004

COAF 1.5.10A

In performing his functions in accordance with the complaints scheme, the Complaints Commissioner must at all times act independently of the FSA.

01/10/2004

COAF 1.5.11

The Complaints Commissioner may appoint a person to conduct the whole or any part of an investigation on his behalf but subject to his direction. That person must not be an officer or employee of the FSA.

03/09/2001

COAF 1.5.12

The FSA will afford the Complaints Commissioner all reasonable co-operation, including giving access to its staff and information. The FSA may, in affording the Complaints Commissioner access to information, have regard to the need to maintain the confidentiality of certain kinds of information. This would include, for example, taking appropriate steps to ensure that the identity of an informant is not disclosed, or maintaining the confidentiality of information given to the FSA under international arrangements. In any case where the FSA decides that it should withhold information, it will inform the Commissioner of the nature of that information and its reasons for withholding it.

03/09/2001

COAF 1.5.13

The FSA is not, because of any investigation being conducted by the Complaints Commissioner, prevented from continuing to take such action, or such further action, as it considers appropriate in relation to any matter which is related to a complaint or a complainant.

03/09/2001

COAF 1.5.14

The Complaints Commissioner will ensure that, before he concludes an investigation and makes a report, any person who may be the subject of criticism in it is given notice of, and the opportunity to respond to, that criticism.

03/09/2001

COAF 1.5.15

In the investigation of a complaint by either the FSA or the Complaints Commissioner, any finding of fact of:

(1) a court of competent jurisdiction (whether in the United Kingdom or elsewhere); or

(2) the Tribunal; or

(3) any other tribunal established by legislative authority (whether in the United Kingdom or elsewhere); or

(4) any independent tribunal charged with responsibility for hearing a final appeal from the regulatory decisions of PIA, IMRO or SFA;

which has not been set aside on appeal or otherwise, shall be conclusive evidence of the facts so found, and any decision of that court or tribunal shall be conclusive.

03/09/2001

COAF 1.5.16

Any findings of fact or decisions of courts or tribunals not covered by COAF 1.5.15 G will carry such weight as the FSA or the Complaints Commissioner considers appropriate in the circumstances.

03/09/2001

COAF 1.5.17

In deciding whether a complaint is well founded and, if so, in deciding what steps he should recommend the FSA to take, the Complaints Commissioner will have regard to the FSA's statutory objectives and the considerations set out in sections 2(3) or 73(1) of the Act.

03/09/2001

COAF 1.5.18

The Complaints Commissioner may, if he thinks it appropriate, recommend that the FSA remedy the matters complained of, as described in COAF 1.5.5 G.

01/10/2004

COAF 1.5.18A

The Complaints Commissioner expects his communications with complainants and the FSA during the course of an investigation to remain strictly confidential. Where a complainant breaches this requirement the Complaints Commissioner may, after having considered all the circumstances including any explanation from the complainant, decide to bring the investigation to an end without having to report under COAF 1.5.19 G. Where the FSA breaches this requirement, the Complaints Commissioner will take account of this when formulating his conclusions and the breach will be recorded in the Complaints Commissioner's final report.

06/08/2007

Reports on investigations

COAF 1.5.19

The Complaints Commissioner must report to the FSA and to the complainant on the results of his investigation, giving reasons for any recommendations he makes.

03/09/2001

COAF 1.5.19A

(1) The Complaints Commissioner will send a preliminary report, with a time limit within which the FSA and the complainant may indicate in writing any disagreement with or comments on the preliminary report.

(2) At the end of this time limit, the Complaints Commissioner will produce a final report after taking into account, at his discretion, any disagreements or comments notified to him. The final report will be the conclusion of the investigation procedure set out in COAF 1.5 and the complaint will then be regarded as closed by the Complaints Commissioner and the FSA.

06/10/2006

COAF 1.5.20

The Complaints Commissioner will ensure that his report, apart from identifying the FSA, does not mention the name of any other person or contain particulars which are likely to identify any other person unless:

(1) in the opinion of the Complaints Commissioner the omission of such particulars would be likely to impair the effectiveness of the report; or

(2) after taking into account the public interest, as well as the interests of the complainant and the interests of other persons, the Complaints Commissioner considers it necessary to mention the name of that person or to include in the report those particulars (see also COAF 1.5.14 G).

03/09/2001

COAF 1.5.21

The Complaints Commissioner may publish his report (or any part of it) if he considers that the report (or any part of it) ought to be brought to the attention of the public.

03/09/2001

COAF 1.5.22

The FSA must, in any case where the Complaints Commissioner has reported that a complaint is well founded, or where he has criticised the FSA in his report, inform the Complaints Commissioner and the complainant of the steps which it proposes to take by way of response.

03/09/2001

COAF 1.5.23

The FSA must, if required by the Complaints Commissioner to do so, publish the whole or a specified part of its response.

03/09/2001

Responding to the Complaints Commissioner

COAF 1.5.24

In deciding how it should respond to a report from the Complaints Commissioner, the FSA will, as well as having regard to its statutory objectives and the considerations set out in section 2(3) or 73(1) of the Act, normally take into account the following:

(1) the gravity of the misconduct which the Complaints Commissioner has identified and its consequences for the complainant;

(2) the nature of the FSA's relationship with the complainant and the extent to which the complainant has been adversely affected in the course of his direct dealings with the FSA;

(3) whether what has gone wrong is at the operational or administrative level;

(4) the impact of the cost of compensatory payments on firms, issuers of listed securities and, indirectly, consumers.

01/10/2004

COAF 1.6

General

01/12/2004

Confidentiality

COAF 1.6.1

The Complaints Commissioner must observe any statutory restrictions applicable to him relating to the disclosure of confidential information.

03/09/2001

Reports

COAF 1.6.2

The Complaints Commissioner will each year submit to the FSA Board, for publication:

(1) a report on investigations concluded by him during the 12-month period ending 31 March. The report may include information concerning trends in the subject matter of complaints and on the general lessons which he considers the FSA should learn; and

(2) information on his activities during that year, including such matters as the approach he adopted to handling different types of complaint and the extent to which he has met his service standards for dealing with complaints. (The Complaints Commissioner will set these standards himself.)

01/10/2004